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New York’s attorney general has sued six chemical manufacturers over their use of PFAS in consumer products, alleging the companies failed to warn consumers about the dangers of the substances and that their sale and use in consumer goods contributed to contamination in the state.
The lawsuit – filed on 9 July, against 3M, EIDP, Corteva, DuPont de Nemours, Chemours and its subsidiary Chemours Company FC – signals increased legal scrutiny on manufacturers’ use of PFAS in everyday products, going beyond litigation focused on contamination caused by the substances’ manufacture or use in firefighting foam.
The action also expands the types of allegations brought in most previous state-led PFAS litigation, raising claims for public nuisance, failure to warn, deceptive and unfair business practices, false advertising and fraud under New York law.
New York’s lawsuit adds to the growing level of litigation seeking to hold chemical manufacturers liable for PFAS pollution, some of which has already resulted in settlements in the billions of dollars.
If successful, the latest legal action could have implications for the companies beyond compensatory damages, potentially requiring them to return profits from prior sales of PFAS-containing products and to provide warnings to consumers about the risks posed by PFAS in products sold or distributed in the state.
Allegations against companies
In the complaint, New York Attorney General Letitia James alleged that the defendant companies "for decades" sold personal care items, grease-resistant food packaging, stain-repellent sprays and other goods containing certain types of PFAS that they knew posed severe health and environmental risks.
The lawsuit alleges that, as a result, the state’s drinking water, soil, fish and other natural resources have become contaminated with perfluorooctane sulfonic acid (PFOS), perfluorooctanoic acid (PFOA), perfluorobutane sulfonic acid (PFBS), 6:2 fluorotelomer alcohol (6:2 FTOH), perfluorohexanoic acid (PFHxA), and other types of the persistent compounds.
New York has therefore incurred "significant costs" identifying and mitigating PFAS contamination and the exposure risk it poses to the state’s citizens, according to the lawsuit.
The complaint outlined eight distinct causes of action against the chemical makers, including allegations that they:
- violated state laws by producing, marketing and selling products despite knowing they contained PFAS that posed environmental and health risks;
- deceptively marketing their products as safe; and
- profiting from the sale of deceptively marketed products.
Disgorgement of profits and product warnings
The complaint asks the Supreme Court of the State of New York, Albany County, to block the companies from engaging in any further violations and to award "compensatory damages" for harm done to the state of New York, its inhabitants and its natural resources.
The attorney general’s lawsuit also calls on the court to order the defendant companies to disgorge, or give up, all "wrongfully obtained" profits from the sale of their PFAS-containing products.
In addition, the complaint says the defendant companies should be required to "adequately warn consumers of the risks of harm posed by their PFAS in consumer products, including the threats to human health and the environment".
The lawsuit also seeks to prohibit the companies from selling consumer products containing "harmful PFAS" unless they disclose any intentionally added or known PFAS in those products and provide warnings about the associated risks.
The defendant companies did not immediately respond to a request for comment on the New York lawsuit.
The case is New York v 3M et al.